Thursday, March 29, 2012

Shirley Ree Smith lives with her daughter Tomeka in Alexandria,
Minn., a quaint town of approximately 11,000 people located about midway
between Fargo and Minneapolis. They share a small, tidy apartment with
Tomeka’s children, Marquis and Yondale, both teenagers. Tomeka’s
daughter, Yolanda, attends college in Nevada.

On a recent afternoon, Smith greeted Yondale as he came home from
school carrying a battered skateboard. She cooks for her grandsons,
helps them with their homework, and generally keeps an eye out for them
while Tomeka is away at work.

She knows their time together could end at any moment.

Smith moved to Alexandria while in the midst of an extraordinary
legal struggle. Fifteen years ago a jury convicted her of shaking
another grandson, 7-week-old Etzel Glass, to death. At the time, Smith
and her family were living in Van Nuys, Calif.

From the beginning, Smith has maintained her innocence. In 2006,
after a decade in prison, a federal appellate court overturned Smith’s
conviction and freed her. Late last year, however, the U.S. Supreme
Court moved to reinstate the conviction, and today, she faces a possible
return to state prison. She has petitioned California Gov. Jerry Brown
for clemency, asking him to commute her sentence.

For now, she lives in a kind of legal limbo. We spoke to her last
week, and ProPublica’s A.C. Thompson asked her what it was like to live
each day without knowing whether she’ll be returned to a cell to
continue serving a term of 15 years to life.

But a deep divide exists within the Los Angeles County Department of
Coroner that could influence the governor’s decision. A senior
pathologist in the coroner’s office has sharply questioned the forensic
evidence used to convict Smith, identifying what he says are a host of
flaws in the case.

Los Angeles prosecutors constructed the case against Smith largely on
the findings of medical experts working for the county coroner. During
an autopsy, forensic pathologists discovered a small amount of bleeding
on the infant’s brain and in his optic nerves. They concluded the death
was a homicide.
But documents obtained by ProPublica, FRONTLINE and NPR show that in January, the coroner’s office asked several staff doctors to take a second look at the infant’s death.

The new report by the pathologist, Dr. James Ribe, details eight
“diagnostic problems” with the coroner’s 1996 ruling that the child had
died from violent shaking or a forceful blow to the head. Ribe wrote
that he saw little evidence that the infant had been attacked, noting
“the complete absence of bodily trauma, such as face trauma, grab marks,
bruises, rib fractures, or neck trauma.” Other doctors in the office
reassessed the case and stood by the homicide ruling.

In Ribe’s view, the injuries to the child’s brain were relatively
minor and could have been caused by the birth process. He also noted
that the baby’s lungs were speckled with tiny blood spots called
petechiae, which are often linked to Sudden Infant Death Syndrome and
suffocation, and pointed out that Glass had been sleeping face down on
an “unsafe sleep surface” — a couch cushion — on the night of his death.

The “bottom line,” wrote Ribe, is “there was head trauma, but we
don’t know when it happened or how it happened. We don’t know if it’s
related to the cause of death. The conservative approach would be to
acknowledge these unknowns. The cause of death should be diagnosed as
undetermined.”
Reached by phone, Ribe declined to comment.

Dr. Eugene Carpenter, who supervised the original autopsy, remains
certain that Glass’s death was a homicide. He stood by his original
assessment, stating that Glass died as a result of abuse. Dr. Lakshmanan
Sathyavagiswaran, the chief medical examiner-coroner, largely
concurred, writing that the baby was the victim of abuse that injured
his brain and may also have been intentionally suffocated.

The Los Angeles Department of Coroner would not address the conflicting views about the case.
Smith told us that if the coroner’s office took a more thorough look
at the case back in 1996 it’s possible that she would never have gone to
prison.

In the decade and a half since Smith was convicted, much has changed
in the world of forensics. The National Academy of Sciences in 2009
issued a lengthy report highlighting flaws in the country’s coroner and
medical examiner system and criticizing the techniques used in law
enforcement crime labs.

Among doctors there’s an increasing awareness of ailments and conditions that can mimic the typical symptoms of child abuse
— bleeding and bruising. The leading textbook on pediatric head
injuries now includes two chapters on these mimics; they range from
sickle cell anemia to congenital brain malformations to unintentional
damage caused by the use of forceps or vacuums during birth.

Smith’s conviction was always based on a novel theory outside the usual pattern of shaken baby syndrome cases,
which are typically marked by a triad of symptoms: bleeding on the
brain and in the retinas, and swelling of the brain. Glass had only one
of these symptoms, a tablespoon or two of blood, pooled on top of his
brain.

During the trial, Carpenter told jurors that while the bleeding
wasn’t enough to kill the baby, Glass was shaken or slammed so
forcefully that his brain stem was fatally — but invisibly — damaged,
shutting his whole body down instantly. “There is no evidence” of the
brain stem injury, Carpenter testified, “and there is no evidence
expected to be found in a shaken infant that dies quickly because the
body does not have time to react to the injury.”

The jury convicted Smith of felony child endangerment — a form of
second-degree murder — and she spent the next decade of her life
dwelling in a California women’s prison.

But Carpenter’s testimony didn’t sway the 9th U.S. Circuit Court of
Appeals, which in 2006 overturned Smith’s conviction. The court found
“there was simply no demonstrable support for shaking as the cause of
death.” Smith’s incarceration, added the court, had “very likely been a
miscarriage of justice.”
Smith told us she greeted the decision with relief.

But when the initial joy wore off, Smith had
difficulty resuming her life in the free world. Her collision with the
criminal justice system carried lingering psychological effects, leaving
her feeling “lost” and fearful, she said. After a stint in a cheap
hotel on Los Angeles’s skid row and a bout of homelessness, Smith
eventually moved to the Midwest, where Tomeka and her surviving
grandchildren were living.

Her legal struggle, however, continued. The California attorney general appealed the case, and late last year, a divided U.S. Supreme Court reversed the 9th Circuit
[PDF]. “The Court of Appeals in this case substituted its judgment for
that of a California jury on the question whether the prosecution’s or
the defense’s expert witnesses more per­suasively explained the cause of
a death,” wrote the court in an unsigned opinion.

At the high court’s direction, the 9th Circuit reinstated Smith’s conviction in February of this year.
That move prompted Smith’s lawyers Michael Brennan, a law professor
at the University of Southern California, and his co-counsel, Dennis
Riordan, to petition Brown to commute Smith’s sentence to the 10 years
she has served, rather than returning her to a prison cell.

In a letter to the governor,
the attorneys note that prosecutors recently asked pediatrician Carol
Berkowitz to review the evidence. The doctor’s report contradicts
Carpenter’s theory that Glass died nearly instantly after someone abused
him — and highlights the lack of scientific consensus among medical
experts when it comes to sudden infant fatalities.

Tomeka Smith — Glass’s mother — is adamant that nobody abused her
child. “Our family is so loving it’s ridiculous,” she said in an
interview, adding that she has complete faith in her mother.
“My mother never spanked me, she never cursed me, she never yelled at
me,” Tomeka Smith recalled. “There’s no possible way she could’ve done
what they say. If I had any doubt about that, I would’ve wanted her
prosecuted to the fullest extent of the law.”

An investigation is underway after video
shows a teenage girl being assaulted during a high school soccer match.

The attack happened during a soccer game between Chester High School and
Lewisville High School on Monday evening around 5:30 p.m.

The video, which was shot by WBTV's partner CN2 News, shows a player from Lewisville tripping and falling to the ground.

The player, later identified as 18-year-old Annette McCullough who is a
senior at Lewisville, then gets off the ground and punches a nearby
Chester High school player. The teen victim is then dragged to the
ground by her hair, while McCullough continues to punch her in the face,
the video shows.

The attack lasted around ten seconds before a woman is able to separate
the two players. The video shows McCullough punching the victim at least
eleven times.

A referee then escorts McCullough off the field.

Chester County Sheriff Richard Smith told WBTV that deputies were called
to Lewisville High School to the report of an assault. McCullough is
being charged with simple assault, according to the incident report from
the Sheriff's Office.

Referees will review the video with the South Carolina High School League to see if any punishments will be handed down.

"Some incidental contact ended in one girl going down and she just got
up and started pummeling," referee Alan Parker said after the game. It's
unfortunate, it really is. Contact is a part of soccer, but when you
retaliate like that, obviously, there is no place in the game for that."

Parker, who has been coaching, playing and refereeing for many years,
says it isn't uncommon to see a scuffle, but this was different.

"Occasionally you have players that go at it, on the field together, but
in this case it was just one girl pummeling the other girl," he said.
"And she didn't stop which is even more egregious."

The victim's mother, Juanita, says she was shocked by what she saw on the field.

"I think it is nonsense that girls can't come and play soccer without
getting assaulted over nonsense, that's just how I feel about it," she
said. "She's gonna have to go to the doctor and have some tests."

The Sheriff's report states that the victim had several "swollen knots
behind her right ear" and a mark on her neck, but was not bleeding.

Juanita said that she believes McCullough needs to be prosecuted to the
fullest extent of the law and believes the senior should be banned from
playing soccer in the league.

Lewisville High School's assistant head coach Paul Atkerson said that the team will deal with the incident.

"I know it will not be tolerated on this team and here in Lewisville,"
he said. "This is something that should not have happened, it should not
have happened at all."

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